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3/13/2016 11:31 am  #21


Re: Sodomy Laws

iwpoe wrote:

The question was about sodomy laws themselves.

I think you (Americans) lost the whole thing with Lawrence v.Texas (others insert their own national turing points). Well, actually, I think you lost the fight many decades earlier when everyone forgot why they we even needed sodomy laws other that "that's weird and gross". But insofar as you weren't willing to restore that, then you were only half-heated about everything in the first place: saying nothing more than, 'Well, sure you can commit the act, but please, don't pretend, by way of the law, to have the same thing as married couples do.'

I'm curious now.  What were the historical reasons for sodomy laws besides a sort of scriptural precedent or simply the gross-out factor? I understand laws against adultery (since marriage was a major part of the social fabric and breaking your marriage vows like that has a real social impact), but less laws against sodomy. Did they think that allowance of the behavior would spread to the point that it turns the "sexual order" upside-down?  I'm sure you had those natural law arguments back then too, but they also had a level for "toleration" of things that were more contained in their influence (one could argue the prevalence of homosexuality in modern media, but you still have only a minuscule part of the population that actually engages in homoerotic activity). 
 

 

3/14/2016 2:50 am  #22


Re: Sodomy Laws

The gross-out factor isn't simple. The emphasis in Sodomy laws (contrary to what the name implies) was always in regard to its irrationality and being contrary to nature. It wouldn't have mattered an iota if someone was "born that way." The law knows (or at least used to know) perfectly full well that people are and have to be reasonable in their behaviour and choices.

Moreover, the nature of homosexual vice is scarcely going to be relegated to people who happen to have an in-born tendency toward same-sex desire. Ultimately homosexuality is just a kind of hedonism. Moreover as we move forward the logic of, say, same-sex marriage means not praising and being supportive of homosexuality is anti-social (just as being opposed to marriage is by nature anti-social). I expect in one generation bisexuality will be the norm.


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3/14/2016 10:31 am  #23


Re: Sodomy Laws

Timocrates wrote:

The gross-out factor isn't simple. The emphasis in Sodomy laws (contrary to what the name implies) was always in regard to its irrationality and being contrary to nature. It wouldn't have mattered an iota if someone was "born that way." The law knows (or at least used to know) perfectly full well that people are and have to be reasonable in their behaviour and choices.rm.

The law exists primarily to deal with judicial matters I.e. matters of justice and injustice between multiple parties.  There are plenty of activities people engage in which are irrational, many of them far more physically damaging, than homosexual activities e.g. smoking, violent contact sports, dare-devil stunts, body piercings et cetera et cetera, which aren't illegal (hence my gluttony analogy).

I can well understand people being aghast at the public celebration of homosexuality or the imperative to grant homosexual couplings the same moral status as traditional marriage, however the proposal to illegalise homosexual activities strikes as both monstrously impractical, pointless and vulnerable to charges of inconsistency by analogy with other irrational behaviours.

Timocrates wrote:

. Ultimately homosexuality is just a kind of hedonism. Moreover as we move forward the logic of, say, same-sex marriage means not praising and being supportive of homosexuality is anti-social (just as being opposed to marriage is by nature anti-social). I expect in one generation bisexuality will be the norm.

One question: if homosexuality is just a form of hedonism then why does not the same apply to heterosexuality? Call the former a misordered form of affection if you will but that even a noticible portion of them think otherwise seems to give the lie to that (even the gentile youth/lover homosexuality of Plato's time was not seen by all its proponents as mere hedonism).

Last edited by DanielCC (3/14/2016 11:31 am)

 

3/15/2016 8:26 am  #24


Re: Sodomy Laws

DanielCC wrote:

There any many other such vices we would think to discourage but not to illegalise for both practical and ethical reasons.

There's a subtle but fundamental problem with this statement. Are laws and social attitudes pro and against anything simply because we think to discourage/promote things or are the things we discourage/promote worth discouraging/promoting per se, regardless what we think? The most solid form of such discouragement/promotion is laws, but not exclusively.

It seems to me that you allow no space at all for natural law in your reasoning. As such, much of what you say has no apparent purpose.

DanielCC wrote:

It's also not that clear that something's merely being a vice constitutes its being an injustice and thus subject to judical retribution.

If by "vice" we mean the same thing, there should be nothing unclear here. It can only be unclear if you actually have no concept of vice. Maybe you think about vice in terms of picking one's nose or something.

DanielCC wrote:

seigneur wrote:

So, we are more concerned about the individual's subjective happiness and not social harmony? Are you saying that there is no social dimension to sexual behaviour? Is there a good argument to establish this or is it just an assumed unchallengeable presupposition?

As far as happiness is a state pertaining to a cognitive subject then all happiness is 'subjective' (so I suspect is the 'harmony' element in 'social harmony' unless one wants to admit a harmonious society could be made up of zombies). Note that I am not defending Poe's account as such just pointing out this evident fact.

Good that you are not defending Poe's account, because by this argument (viz., all happiness is 'subjective') his account becomes utterly indefensible. If happiness is entirely subjective, then there's no reason to attribute any social value to it and the lawmaker can, when considering e.g. sodomy laws, completely ignore happiness as a factor.

All happiness (and harmony) may be subjective, but does it follow from this that we should be make laws solidly based on subjective happiness or does it follow that we should completely ignore it? There seems to be no pointer either way, particularly when considering things subjectively.

DanielCC wrote:

seigneur wrote:

Are you saying that there is no social dimension to sexual behaviour?

Prima facia there is an obvious social element in that it involves another subject.

Note that we are discussing sodomy laws. What are laws? Do laws have a social dimension in the sense that they merely "involve another subject"? It's obviously rather crucial how the other subjects are involved. Society has a structure. There are rulers and subjects, authority and jurisdiction, government and population. A contract between two equals is not a law. A rule imposed by someone from the position of legislative authority is. Now, why would such an authority be given to someone and what should he/they do with it? Is it enough to legislate by entertaining the general idea "it involves another subject, therefore it's social"?

Social is not merely that which involves another subject. Social is that which involves another subject in a good, bad or neutral way - and the good, bad, and neutral are objectively determined, because if it's merely subjective, there's no necessary common point between the subjects, and when there's no common point between the subjects, then we merely have a bunch of subjects, not a society. There's a subtle difference between enumerated mathematical points and a set of points in math. There's a more evident difference between just a bunch of people and people having common goals, recognizing a common good.

DanielCC wrote:

I can well understand people being aghast at the public celebration of homosexuality or the imperative to grant homosexual couplings the same moral status as traditional marriage, however the proposal to illegalise homosexual activities strikes as both monstrously impractical, pointless and vulnerable to charges of inconsistency by analogy with other irrational behaviours.

This is a good point. My own impulse would be to identify the analogies and prioritize between them.

DanielCC wrote:

One question: if homosexuality is just a form of hedonism then why does not the same apply to heterosexuality?

Aren't pornography and prostitution, regardless of "orientation", sheer hedonism? Additionally, homosexuality in any shape and form is hedonism because it cannot serve the reproductive purpose (which is the purpose of sex) at all. There are allowances for heterosexuality because it serves the reproductive purpose and consequently the continuity of society.

This point would be difficult to see for someone who refuses to acknowledge society. For me, it's difficult to see why someone who doesn't acknowledge society would discuss laws. Why not simply ignore laws, based on the "evident fact" that society doesn't exist?

DanielCC wrote:

Call the former a misordered form of affection if you will but that even a noticible portion of them think otherwise seems to give the lie to that (even the gentile youth/lover homosexuality of Plato's time was not seen by all its proponents as mere hedonism).

It's true that Plato did his best to define a place and purpose for pederasty, but he did so precisely in order to delimit hedonism. On the other hand, he didn't have anything good to say about homosexuality in the broader sense, such as sodomy.

Last edited by seigneur (3/15/2016 8:27 am)

 

3/15/2016 12:57 pm  #25


Re: Sodomy Laws

seigneur wrote:

It seems to me that you allow no space at all for natural law in your reasoning. As such, much of what you say has no apparent purpose..

Not at all. Natural Law determines the morality or immorality of actions, which I have not denied. My claims concern the reach of Positive judicial law, which is derived in part from NL, yet not identical to it (there much that is immoral that does not fall under law and much that falls under law which isn't intrinsically moral).  

seigneur wrote:

If by "vice" we mean the same thing, there should be nothing unclear here. It can only be unclear if you actually have no concept of vice. Maybe you think about vice in terms of picking one's nose or something...

By 'vice' I mean the habitual tendency to engage in an irrational and thus by NL standards at least trivially immoral action. If someone had a propensity to pick their nose and eat their snot, an action contra to hygiene and bodily health, then yes I would think that a vice, albeit a minor one. Yet it is not something we would ever think the law is designed to prevent.

seigneur wrote:

All happiness (and harmony) may be subjective, but does it follow from this that we should be make laws solidly based on subjective happiness or does it follow that we should completely ignore it? There seems to be no pointer either way, particularly when considering things subjectively.

Would  you deny that Aristotelian ethics take human flourishing as the ultimate end of ethical behaviour, and that said flourishing is somehow connected to a form of long term happiness? You can but if so it'd help if you explain what ethical theory you hold for it's certainly not NL.

seigneur wrote:

. There's a more evident difference between just a bunch of people and people having common goals, recognizing a common good..

And what is this common good in question? On NL accounts a society exists for the flourishing of its members, and common good is understood in Utilitarian 'prudential' way, albeit as a concern that comes into play after far more fundamental moral principles.

 

seigneur wrote:

. Additionally, homosexuality in any shape and form is hedonism because it cannot serve the reproductive purpose (which is the purpose of sex) at all. There are allowances for heterosexuality because it serves the reproductive purpose and consequently the continuity of society...

In which case my zombie question remerges. If you are saying that the purpose of reproduction is the continuity of society then what reason has one to care about the continuity of said society? The way you describe it here makes it sound the opposite to the above - that is persons exist for the flourishing of society.

 

seigneur wrote:

.This point would be difficult to see for someone who refuses to acknowledge society. For me, it's difficult to see why someone who doesn't acknowledge society would discuss laws. Why not simply ignore laws, based on the "evident fact" that society doesn't exist?.

Point of reference: I do not claim that society does not exist, only that talk of society is shorthand for talk of X number of individuals interacting with one another. If you disagree please tell me what, in ontological terms i.e. in terms of categories, a society actually is.

Last edited by DanielCC (3/15/2016 12:58 pm)

 

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